Action for damages for assault amounting to torture – court a
quo awarding general damages of M340 000 – on appeal
award
reduced to M150 000.

JUDGMENT

SCOTT
JA

[1] The respondent is an officer in the Lesotho Defence
Force. On 12 December 2004 he was arrested and detained until 24
December
2004 when he was released in pursuance of an order granted
by Monapathi J. During his detention he was tortured by members of
the
Military Intelligence and, or with the assistance of, members of
the Lesotho Mounted Police, all of whom, it is common cause, were
acting in the course and scope of their employment. On 30 November
2005 the respondent instituted an action for damages against
the
appellants in which he claimed payment of the sum of M750 000, made
up as follows: M300 000 for unlawful arrest and detention;
M300 000
for pain and suffering, and M150 000 for contumelia. At the
commencement of the trial the respondent abandoned his claim
for
unlawful arrest and detention but proceeded with the remaining
claims. The respondent and a doctor in private practice who
examined
him shortly after his release gave evidence. Neither was
cross-examined. The appellants closed their case without tendering
evidence. The only issue in the court below was the quantum of
damages. The trial was before Madam Justice Chaka-Makhooane who
ultimately awarded the respondent damages in the sum of M340 000,
made up of M250 000 for pain and suffering and M90 000 for
contumelia.
In this court counsel for appellants did not point to any
misdirection on the part of the learned judge. His sole complaint was
that the award was excessive.

[2] The respondent testified that on the evening of 12
December 2004 members of the military police arrived at his house and
told
him that he was wanted at the military police offices at
Ratjomose. When he arrived there he was arrested and detained for
having
allegedly conveyed a message from a Mr. Lerotholi, who was
then being detained at the Makoanyane Barracks, to the latter’s
home. It transpired that Lerotholi had subsequently escaped.

[3] Four days later, on 16 December 2004, a prison
warder came to the respondent’s cell at about midnight and told
him that
for security reasons he was being transferred to the
military police cells at Makoanyane. The respondent said he was
handcuffed
and his legs fettered before being taken to the military
intelligence offices. He was led into a room where a number of people
were present and ordered to sit on a swivel chair. One of those
present flung a blanket over his head and a rope was tied around
his
waist so as to keep the blanket in place. He said he felt hands
pressing the blanket over his nose and mouth and he struggled
to stop
them from suffocating him. In the struggle he fell to the floor.
There, he was kicked all over his body. Someone jumped
on his wrists
causing the handcuffs to cut into his wrists. Another person grabbed
hold of and pulled his penis and testicles.
The respondent described
the pain as excruciating. All the while someone else was attempting
to suffocate him. He said that eventually
he could not breathe and he
lost consciousness. He later came round to find someone pouring water
over his head and face. He was
asked where Lerotholi was and how he
had managed to escape. The respondent’s answer did not satisfy
his tormentors and there
was again an attempt to cover his nose and
mouth which persisted until he again lost consciousness.

[4] Eventually he was taken back to the cells at
Ratjomose. The morning routine was then just beginning and the
respondent estimated
that the torture must have gone on for about
four hours. He found that he was handcuffed with two sets of
handcuffs. One set was
removed but the key could not be found for the
other set. His hands were bleeding and he had to wait for about an
hour before someone
arrived with the key. His throat was dry and he
asked for water. This was refused. Instead, he was offered food which
he was unable
to eat. Eventually he was given a rationed amount of
water.

[5] Later that morning, i.e. the morning of 17 December
2004, at the respondent’s request, he was taken to the
Makoanyane
Military Hospital. The officer escorting him instructed
the doctor who attended to him not to give him a medical report. The
respondent
requested both a report and to be admitted as a patient.
The doctor said he had no sympathy for prisoners and refused both
requests.
He did, however, indicate that he wished to see the
respondent on a daily basis in order to attend to his injuries.

[6] On 19 December 2004 the respondent was again taken
to the military intelligence offices. This time he was not only
handcuffed
but in addition a hood was placed over his head. He could
not see but he guessed that he was taken to the same office. He was
made
to sit and a plastic bag was placed over his head and fastened
around his neck. When he tried to inhale the bag clung to his face
and he was unable to breathe. After a while he lost consciousness.
When he came to, he was again questioned about Lerotholi’s
escape. Once again his interrogators were not satisfied with the
answers he gave and the process of putting the plastic bag over
his
head was repeated two or three times. On this occasion, however, he
was not physically beaten.

[7] On 23 December the respondent was once again taken
to the military intelligence offices. Once again he was handcuffed
and a
hood placed over his head. Once again a plastic bag was used to
prevent him from breathing. As before, the bag was kept in place
until he lost consciousness. But, on this occasion, when he regained
consciousness he found himself back in his cell at Ratjomose.

[8] The respondent testified that by this time his hands
were so swollen and he was generally so sore that he could not handle
anything,
not even a bar of soap. He was able to wash only with the
assistance of a few good Samaritans who were allowed into the shower
to help him wash and to wash his clothes. Even eating was difficult.

[9] On 23 December 2004, when he was at hospital for his
daily treatment, a message came that he had to be taken back to
Ratjomose
immediately. When he arrived there he was taken to court.
He appeared before Mr. Justice Monapathi who, on observing his
condition,
ordered his immediate release. Presumably friends or the
family of the respondent had sought an urgent order for him to be
brought
to court.

[10] On 29 December 2004 the respondent was examined by
a doctor in private practice, Dr. ‘Musi Mokete. The examination
revealed
that there was a bruise on the right lateral side of the
forehead; the movement of the neck was limited because of pain, there
were multiple gross parallel abrasions on both wrists, compatible
with double cuffing; both hands had a weak grasp with a lack of
sensation on being touched; the rib cage on the right side was very
tender; there were abrasions on the medial and lateral sides
of both
knees; there was a ‘raw’ abrasion on the left ankle and
the right ankle was tender to pressure. The doctor
expressed the view
that “all injuries [were] compatible with the use of blunt
object/s applied with considerable force and
dangerous to life.”

[11] The respondent testified that in addition to the
horror and humiliation of the torture he had endured he found the
experience
of being paraded through the streets of Ratjomose and
Makoanyane under an armed guard comprising persons who were his
juniors in
rank to be most humiliating. He said that his attendances
at the hospital were similarly a humiliating experience. He was
viewed
as a suspect and a criminal and wherever he went he could see
people staring at him wondering what he had done. He said that he
still experienced “flashbacks” of the torture sessions he
had endured and on occasions felt “panicky” and
“apprehensive” for no apparent reason. He had swollen
joints in the winter and his right wrist remained weak.

[12] The respondent was subsequently charged in a
military court with assisting Lerotholi to escape. One witness was
called and
thereafter the prosecution was not continued. It was just
abandoned. The prosecution of Lerotholi resulted in the latter being
acquitted.

[13] As I have previously said, the respondent was not
cross-examined and no evidence was tendered on behalf of the
appellants.
There was nothing to suggest that he had been offered an
apology for what had happened, nor was there evidence that
disciplinary
or other steps had been taken against his tormentors.
Had this been done it may at least have afforded him some measure of
satisfaction
and peace of mind.

[14] Section 8(1) of the Lesotho Constitution provides
that “no person shall be subjected to torture or to inhuman or
degrading
punishment or other treatment.” The right not to be
tortured, together with the right to life, I would think, are the two
most fundamental of all the rights conferred by the Constitution. The
experience of being repeatedly smothered until losing consciousness
–
not knowing what to expect next and not knowing whether one’s
last moment had come – is almost too ghastly
to contemplate.
The anguish, fear and pain the respondent must have experienced
cannot readily be compared with the pain a person
may experience in
an accident or subsequently while lying in hospital where analgesics
are available.

[15] It is well established that each case must be
decided on it own unique circumstances and that the trial judge has a
wide discretion
to award what he or she in those circumstances
considers to be a fair and adequate compensation. Nonetheless, while
it is no doubt
true that no two cases are precisely the same,
guidance must be sought from past awards and in the absence of awards
in cases considered
to be comparable regard should at least be had to
what Potgieter JA described in Protea Assurance Co Ltd v Lamb 1971
(1) 530 (A) at 536 B as “the general pattern of previous
awards”. It is also important for the trial court to provide
some reasoned basis for the amount awarded in respect of general
damages, however difficult that may be. (See Road Accident Fund v.
Morunga 2003 (5) SA 164 (SCA) at 172 D para 33).

[16] In the present case the court a quo made no
reference to past awards and one is left with no idea how the amount
awarded was arrived at. It is accordingly necessary
to refer to the
awards which I consider to be of some assistance and to compare these
with the amount of M340 000 which was awarded.
Given the
circumstances of the case, I do not consider it practicable to assess
separately an amount for pain and suffering and
an amount for
contumelia.

[17] In Mohlaba & Others v. Commander of the
Royal Lesotho Defence Force and Another LAC (1995-1999) 184 the
three appellants were awarded respectively sums of M75 00, M50 000
and M25 000 for unlawful detention of
varying periods and for
assaults while in detention. These awards strike me as extremely low
but, given that they were made some
14 years ago in 1996 and the
depreciation in the value of money since then, they are not of much
assistance. No evidence was tendered
as to past rates of inflation in
Lesotho. In any event, the assaults in the present case were
undoubtedly more severe. Of particular
significance is the fact the
respondent has not survived his ordeal unscarred. As I have said, he
continues to experience “flashbacks”
and on occasions
feels “panicky” and “apprehensive” for no
apparent reason.

[18] Two more recent South African awards provide
greater assistance. They are both distinguishable from the present
case in that
the claim in each related to a violation of the
plaintiff’s rights to dignity and freedom rather than to bodily
integrity.
In neither case was the plaintiff assaulted. Nonetheless,
while the awards require considerable adjustment to accommodate the
distinguishing
features, they are indicative of a trend in the making
of awards which provides a basis for determining an amount in the
present
case.

[19] The most recent is Rudolph and Others v Minister
of Safety and Security and Another 2009 (5) SA 94 (SCA). It
appeared that two of the appellants were unlawfully arrested on a
Friday at 5pm and detained until approximately
midday on the
following Tuesday. The evidence revealed that they were detained
under extremely primitive and unhygienic conditions.
Their claims had
been dismissed in the Pretoria High Court but on appeal each was
awarded damages in the sum of R100 000 being
the amount they had
claimed.

[20] In the earlier case of Manase v Minister of
Safety and Security 2003 (1) SA 567 (CkHC) a 65 year-old man had
been arrested and detained for 49 days. The arrest was found to have
been malicious
and his detention unlawful. The evidence revealed that
the detention had proved to be a traumatic experience for the
plaintiff.
For the “hardship, humiliation and indignity”
suffered by the plaintiff he was awarded general damages in the sum
of
R90 000 for the malicious arrest and detention.

[21] Having regard to the severity of the assaults upon
the respondent in the present case it seems to me that a fair and
reasonable
award in South Africa would have been in the region of
double the amount awarded in the Rudolph case, i.e. R200 000. But
some allowance
must be made for the differing economic conditions in
the two countries. In all the circumstances I would have awarded the
respondent
general damages in the amount of M150 000.

[22] It has been consistently held that a court of
appeal will not interfere unless there is a striking disparity
between what the
trial court awarded and what the court of appeal
considers ought to have been awarded. In the present case the Court a
quo awarded more than double the amount I would have awarded.
This court must therefore interfere with the court a quo’s
award.

[23] In the result the appellants are substantially
successful and are entitled to their costs of appeal.

[24] The following order is made:

(1) The appeal is upheld with costs

(2) The order of the court a quo is set aside and
the following order is substituted in its place

“Judgment is granted in favour of the plaintiff
against the first and second defendants jointly and severally, the
one paying the
other to be absolved, for payment of damages in the
sum of M150 000, together with costs of suit”.